the Act of Parliament in question. The conclusion which I
reach is that to allow a wider power of investment is to confer
additional powers of investment and is not, therefore,
inconsistent with but is in aid of and supplemental to the
powers of investment which are conferred by section 11 of the
Act. On that view it would be open to the court to allow what
has been done by settling a scheme conferring the necessary
powers.”
27.
These cases were considered by Buckley LJ in Construction Industry Training
Board v Attorney-General [1973] Ch 173 where he said (p.187):
“It has long been recognised that, where a charity is established
by an Act of Parliament, the court will not exercise its
jurisdiction in any way which will conflict with the provisions
of the Act (In re Shrewsbury Grammar School (1849) 1
Mac. & G. 324, 333), but this does not mean that in such a case
the jurisdiction of the court is entirely ousted. In In re
Shipwrecked Fishermen and Mariners' Royal Benevolent
Society [1959] Ch. 220, Danckwerts J. expressed the view (in
which I respectfully concur) that the court has power to
sanction a scheme in relation to a charity established by an Act
of Parliament in respect of matters not in conflict with the
provisions of the Act, and even in respect of those matters
which are regulated by Act of Parliament the court can
entertain an application by charity trustees to consider whether
they should apply to Parliament for an amending Act: In re
Shrewsbury Grammar School, 1 Mac. & G. 324. It seems
that the position may be similar in the case of a charity
incorporated by Royal Charter: In re Whitworth Art Gallery
Trusts [1958] Ch. 461.”
28.
Thus the distinction is drawn between those cases where the relevant Act prohibits
what is sought to be done and those, where no statutory prohibition is imposed but the
trustees seek powers going beyond what is expressly authorised. The Court may
intervene in the latter case but not the former. In this connection it is convenient to
record that Counsel for the Attorney-General accepted that if a claim is made for
restitution of an object comprised in the collection of the Museum it may be
compromised on terms which include a disposal of the object by the Trustees in
favour of the claimant. In such a case if the claim had been made good it would have
been established that the object in question was not and never had been an object to
which the prohibition contained in s.3(4) applied. I can see nothing wrong with a
bona fide compromise to that effect, compare Binder v Alachouzos [1972] 2 QB 151.
29.
In relation to his second submission counsel for the Attorney-General referred me to
Attorney-General v Great Eastern Railway Co. (1880) 5 App.Cas.473 and the
citations with approval from the speeches of Lords Blackburn and Selborne made by
Lord Templeman in Hazell v Hammersmith LBC [1992] 2 AC 1, 29. I did not
understand counsel for either the Trustees or CLAE to dispute the proposition in
support of which these citations were relied on. I accept the proposition.
30.
In relation to his third submission counsel for the Attorney-General referred me to
National Anti-Vivisection Society v IRC [1948] AC 31. At pages 50 and 62 Lords
Wright and Simonds quoted with approval from Tyssen on Charitable Bequests 1st
Ed. 176/7